Rasmussen v. Robinson

decided: September 16, 1947.

RASMUSSENv.ROBINSON ET AL.

Author: Biggs

Before BIGGS, MARIS and O'CONNELL, Circuit Judges.

BIGGS, Circuit Judge.

Stripping the appeal in the case at bar to its essential facts, the following appears. Rasmussen, the appellant, a Danish subject, first arrived at St. Thomas in the United States Virgin Islands on July 22, 1932. From time to time prior to 1944 he left the Virgin Islands and returned thereto. During the years 1941, 1942, 1943 and 1944 he embezzled substantial amounts from two companies and on July 11, 1944 left the Virgin Islands on a small fishing vessel, the "Snow White", and arrived at St. Martin in the French West Indies. He was there detained on a warrant charging him with embezzlement and was returned to St. Thomas on the U.S.S. "Conqueror". On or about July 28, 1944, he was admitted as a "returning resident" and pleaded guilty to two charges of embezzlement*fn1 and was sentenced on January 16, 1945 to serve two concurrent sentences of four years each. In passing each sentence the District Court of the Virgin Islands recommended to the Attorney General that the appellant not be deported as a consequence of the convictions. See Section 19 of the Immigration Act of 1917 as amended, 8 U.S.C.A. § 155. On March 8 and on July 3, 1945, after he had been sentenced, Rasmussen admitted to the Immigration Authorities at St. Thomas, V.I., that he had committed crimes involving moral turpitude, viz., the embezzlements for which he had been sentenced. Just prior to Rasmussen's release from imprisonment at the Richmond Penitentiary at St. Croix, he was served with a warrant of deportation. He petitioned the District Court of the Virgin Islands for a writ of habeas corpus, asserting that the recommendations to the Judge of the District Court of the Virgin Islands to the Attorney General had been disregarded and that, for this reason, the warrant was null and void. After hearing the District Court discharged the writ, remitting Rasmussen to the custody of the immigration authorities for deportation. He has appealed.

The pertinent provisions of the Immigration Act of 1917 as amended are set out in the footnote.*fn2 The appellant's contention is that the language of Section 19 providing for a recommendation to the Attorney General by the sentencing judge that the alien shall not be deported is binding on the Attorney General and prohibits his deportation. The respondents' position is that the recommendation provisions of Section 19 are not applicable.

The statute presents difficulties of interpretation. Section 3 of the Act provides that an alien who has been convicted of or who admits the commission of a crime involving moral turpitude shall be excluded from admission to the United States. Rasmussen, however, was admitted as a "returning resident" for the purposes of his trial. This entry must be presumed to have been a legal one. Cf. Blumen v. Haff, 9 Cir., 78 F.2d 833. Section 19 states that any alien who was convicted or who admits the commission "prior to entry" of a crime involving moral turpitude shall be deported. If Section 3 was strictly followed no alien within the purview of Section 19 would be admitted. But the provisions of Section 19 were intended to provide means for the deportation of aliens who had obtained entry despite the provisions of Section 3.*fn3 In United States v. Smith, the "Volpe case", 289 U.S. 422, 425, 53 S. Ct. 665, 667, 77 L. Ed. 1298, it was held that "* * * the second coming of an alien from a foreign country into the United States is an entry within the usual acceptation of that word * * *". The decision of the Supreme Court in the Volpe case is susceptible to the inference that it makes no difference where the crime occurred if it was committed prior to entry into the United States. The crimes committed by Rasmussen prior to his return to the Virgin Islands were committed "prior to entry". Rasmussen is within the scope of Section 19 as an alien "* * * who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude * * * shall, upon the warrant of the Attorney General, be * * * deported."

We come now to the question of whether the recommendation proviso of Section 19 is applicable for Rasmussen's benefit. Its terms are set out in note 2 supra. It provides that the sentencing judge may recommend nondeportation of the alien convicted of a crime involving moral turpitude. The pertinent language is that "The provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply * * * nor shall such deportation be made * * * if the * * * judge * * * shall * * * make a recommendation to the Attorney General etc." Nothing in Section 19 expressly limits the operation of the recommendation proviso to sentences for crimes committed either before or after entry. If the section be construed literally therefore Rasmussen's sentences should be included in its purview. The Volpe decision also makes clear that his sentences fall within the scope of the recommendation proviso for in that case the Supreme Court construed the word "entry" as the equivalent of the phrase "any entry". But this portion of the statute provides that the recommendation shall be made to the "Attorney General". The "Attorney General" referred to is the Attorney General of the United States. The "recommendation" is mandatory upon him. United States v. Hughes, 3 Cir., 116 F.2d 613, 616, and note 16 cited to text. It follows that the judges who are to make the recommendation are to be judges of courts of the United States or of the States for Congress certainly did not intend to impose the mandate of a foreign judiciary on the Attorney General of the United States. This means that crimes committed prior to entry, not within the United States, are not within the proviso, but crimes committed by an alien, in the United States, prior to entry, are within the proviso. We so stated in the Hughes case, supra.*fn4

We can perceive no lack of logic in this view. Congress intended to confer and did confer upon our "local" judges the power to recommend whether or not an alien should be deported for a crime involving moral turpitude committed within the United States. There is no reason why Rasmussen should not be given the benefit of the recommendations in his favor because his crimes were committed "prior to entry".

It must be conceded that this conclusion is contrary to dicta in the Hughes case, supra, 116 F.2d at page 615, in which we held only that Santarelli was deportable "as an alien 'who has remained longer than permitted under this Act'", citing Masahiko Inouye v. Carr, 9 Cir., 89 F.2d 447, but we went on to state certain other conclusions which tend to support the ruling of the court below in the case at bar. See D.C., 68 F.Supp. 930, 932.

A final point requires discussion. The respondents rely on Rasmussen's admissions that he committed crimes involving moral turpitude. They point to the language of Section 19 hereinbefore frequently quoted: "any alien * * * who admits the commission, prior to entry, of a * * * crime * * * involving moral turpitude", and take the position that since Rasmussen admitted the commission of the embezzlements, he is deportable, the recommendation proviso of Section 19 being applicable only to one who has been found guilty of such a crime in a court of law and who has made no admission. It is idle to speculate as to what may have been the intention of Congress respecting the status of aliens who admitted commission of crimes involving moral turpitude in contradistinction to those who were tried and found guilty for Rasmussen not only admitted the commission of crimes of embezzlement but also was sentenced therefor and received the benefit of recommendations from the judge. What occurred, as we have demonstrated, was within the purview of the proviso of Section 19. Rasmussen therefore is entitled to the benefit of the Judge's recommendations that he be not deported.

The judgment of the court below will be reversed and the cause will be remanded with the direction to discharge ...

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